Hate Speech Codes: A Narrow Perspective

Joseph J. Hemmer, Jr.

Volume 13, 2000.

Abstract

An examination of relevant United States Supreme Court decisions
indicates that freedom of expression is not absolutely free. The
justices have restricted such forms of speech as obscenity,
defamation, fighting words, incitement to criminal activity, and
advertising. A recent public debate questioned whether "hate speech"
should be added to the list of speech forms that warrant regulation.
The court system rejected restrictive codes established by the
University of Michigan, University of Wisconsin, and city of St.
Paul, Minnesota. This article identifies reasons why the codes were
declared unconstitutional and offers a rationale for formulating
acceptable codes. The study concludes that a constitutional code must
be framed from a narrow perspective in order to avoid flaws of
overbreadth and content-based regulation.

Introduction

Historical analysis of the United States Supreme Court's view of
the First Amendment reveals that freedom of expression is not
absolutely free. Various justices have applied limiting judicial
tests to the right of expression. In Gitlow v. New York
(1925), Justice Edward Sanford espoused the "bad tendency" test, a
standard that conferred low priority to freedom of expression.
According to Sanford, any expression that had a tendency to lead to
substantial evil should be "nipped in the bud." Justice Oliver
Wendell Holmes introduced the "clear and present danger" test, in
Schenck v. United States (1919), noting that a government may
punish expression "that produces or is intending to produce a clear
and imminent danger that it will bring about forthwith certain
substantive evils." Holmes cited a classic example: "The most
stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic." The
"balancing" test, fashioned by Justice Fred Vinson in American
Communications Association, C.I.O. v. Douds (1950), recognizes
that when other rights conflict with the right to free
expression--for example, the right to a fair trial, right to privacy,
right to peace and order--the competing rights should be balanced to
determine which has priority. Another standard, the "preferred
position" test, places expression in a position of prominence but
acknowledges that free speech is not absolutely free. In Kovacs v.
Cooper (1949), Justice Stanley Reed noted:

The preferred position of freedom of speech in a society
that cherishes liberty for all does not require legislators to be
insensible to claims by citizens to comfort and convenience. To
enforce freedom of speech in disregard of the rights of others
would be harsh and arbitrary in itself.

The opinions of Justices Sanford, Holmes, Vinson, and Reed
recognize that while individuals are entitled to the right of free
expression, failure to use that right responsibly may lead to
restriction of the freedom to communicate.

In addition, Supreme Court decisions have identified specific
forms of expression that are subject to regulation. In Konigsberg
v. State Bar of California (1961), Justice John Harlan
acknowledged that "certain forms of speech, or speech in certain
contexts, has been considered outside the scope of constitutional
protection." In Chaplinsky v. New Hampshire (1942), Justice
Frank Murphy identified "certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which has never
been thought to raise any Constitutional problem." He cited as
examples "the lewd and obscene, the profane, the libelous, and the
insulting or fighting words." In Roth v. United States (1957),
Justice William Brennan affirmed that libel and obscenity fall
"outside the protection intended for speech and press." In
Valentine v. Chrestensen (1942), Justice Owen Roberts limited
the protection awarded to "commercial speech." The Brandenburg v.
Ohio (1969) per curiam held that speech may be restricted when
"such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action." The
conclusion to be drawn from this survey of judicial opinions is that
expression which falls within specific categories--obscenity,
defamation, fighting words, advocacy of criminality, commercial
speech--enjoys less protection than other forms of expression.

The debate over "hate speech"

Recently, a public debate questioned whether "hate speech" should
be added to the list of speech forms that warrant limited protection.
The controversy began in the 1980s and continued throughout the 1990s
while academic institutions served as the setting for numerous
instances of hate speech. Hate epithets were directed at individuals
who represented specific races, ethnic backgrounds, genders, sexual
orientations, and physical attributes. For example, African Americans
were addressed as "nigger," "jigaboo," "porch monkey," "saucer lips,"
and "coon"; Jews as "kike"; Asians as "gook," "Jap," and "chink";
females as "bitch" and "cunt"; homosexuals as "queer," "faggot," and
"dyke"; overweight persons as "fatso" and "lard-ass"; and disabled
individuals as "crips."(1) In an effort to combat such incidents,
colleges and universities passed codes designed to prevent and/or
punish hate speech.(2 )Eventually, attempts by academic institutions
to enforce the codes led to judicial resolution. The codes
established by the University of Michigan and the University of
Wisconsin were declared unconstitutional in John Doe v. University
of Michigan (1989) and UWM Post v. Board of Regents of the
University of Wisconsin System (1991). In addition, an ordinance
formulated by the city of St. Paul, Minnesota, was overturned in
R.A.V. v. City of St. Paul (1992).

In this article, the judicial decisions in John Doe, UWM Post, and
R.A.V. are examined in order to accomplish two purposes. First, the
study explicates why the regulatory codes were found to be
unconstitutional. Detailed perusal of the decisions reveals two
principal reasons why hate speech codes failed to meet constitutional
muster--overbreadth and content-based regulation. Each reason will be
considered in the following section. Second, the study offers a
rationale for formulating acceptable codes. The author recommends
that regulation be approached from a narrow perspective, one that
focuses on hate-based epithets. Such an approach avoids the faults of
overbreadth and content based regulation.

Constitutional flaws

The administrative and legislative regulations under study in this
article have been overturned because of constitutional shortcomings.
In John Doe, Judge Avern Cohn declared the University of Michigan
code unconstitutional because its stated purpose of sanctioning
"remarks which seriously offend many individuals beyond the immediate
victim, and which, therefore, detract from the necessary educational
climate of a campus" (860), exceeded constitutional limits. More
specifically, Judge Cohn objected to the administration's application
of the policy, including the practice of punishing "offensive
remarks," e.g., a psychology student openly stating his belief that
homosexuality is a disease and that he intended to develop a
counseling plan for changing gay clients to straight (865), a public
speaking student reading a homophobic limerick which ridiculed a
well-known athlete for his presumed sexual orientation (865), and a
dental student stating that he had heard that minorities have a
difficult time passing a specific course (866). According to Cohn,
the University could not proscribe expression simply because it
offended a large number of people.

In UWM Post, Judge Robert Warren found that the University of
Wisconsin Rule violated the requirements of the "fighting words
doctrine," as set forth in Chaplinsky v. New Hampshire (1942).
In Chaplinsky, the court established a two-part definition for
fighting words: words which by their very utterance inflict emotional
injury, and words which tend to incite an immediate breach of the
peace. The first part concerns emotional upset and injury to one's
sensibilities. The second part concerns physical retaliation, i.e.,
fisticuffs. In order to constitute fighting words, expression must
not merely breach decorum but also must tend to produce physical
reaction from the addressee. Since the UW rule did not require that
the regulated expression tended to incite violent response, the rule
was overbroad (1169-73). The rule was misdirected in that it punished
offensive words that merely demeaned or injured the sensibilities of
the victim but which were incapable of eliciting a physical
response.

The courts also found the codes to be content-based. In UWM Post,
Judge Warren noted:

The rule disciplines students whose comments, epithets,
or other expressive behavior demeans their addressees' race, sex,
religion, etc. However, the rule leaves unregulated
comments, epithets and other expressive behavior which affirms or
does not address an individual's race, sex, religion, etc (1174).

In UWM Post, Warren identified and then rejected the University of
Wisconsin's rationale for a content-based regulation. The Board of
Regents had established the regulation because, in their view, the
proscribed expression "has little or no social value since it does
not serve as a step to the truth." Furthermore, it is not intended to
inform or convince the listener, it is not part of a dialogue or
exchange of views, it does not invite a reply, it constitutes verbal
assault, and is likely to incite reaction. In rejecting this
rationale, Warren upheld the right of speakers to employ "comments,
epithets or other expressive behavior to inform their listeners of
their racist or discriminatory views," or to attempt "to convince
their listeners of their positions," or to express "the speaker's
emotions." Warren stressed that "the Constitution does not make the
dominance of truth a necessary condition of freedom of speech"
(1175).

In R.A.V., Justice Antonin Scalia noted that the St. Paul
ordinance went "beyond mere content discrimination, to actual
viewpoint discrimination."

Displays containing some words--odious racial epithets, for
example--would be prohibited to proponents of all views. But
"fighting words" that do not themselves invoke race, color, creed,
religion, or gender--aspersions upon a person's mother, for
example--would seemingly be usable ad libitum in the placards of
those arguing in favor of racial, color, etc. tolerance and equality,
but could not be used by that speaker's opponents (2547-8).

The ordinance, like the hate speech code established by the
University of Wisconsin, was unconstitutional because it punished
content-based expression.

Examination of the judicial decisions reveals that expressions of
hate are protected by specific constitutional guarantees. First,
expression may not be regulated on the grounds that it is offensive
or that it produces emotional injury. Clearly, any effort to ban
specific offensive words, for example, the racist term "nigger," the
gender-based word "cunt," and the sexual orientation-focused word
"faggot," runs contrary to the constitution. If a code banned such
words, numerous respected pieces of literature--Mark Twain's The
Adventures of Huckleberry Finn, Henry Miller's Tropic of
Capricorn, and Harvey Fierstein's Torch Song
Trilogy--could not have been written. Second, content-based
expression should likewise be protected. Clearly, the expression of
any hate-based theory, ideology, philosophy, subject matter, or
message content enjoys constitutional protection. For example, it is
unconstitutional to prohibit discussion of theories regarding the
intelligence of African Americans, the emotionalism of women, the
normalcy of gays and lesbians, the life expectancy of overweight
individuals, the dependency habits of the disabled. The laws under
consideration in John Doe, UWM Post, and R.A.V. were properly
overturned because they breached protected expression in either their
stated legislative purpose or in their practical administrative
application. And, in so doing, the courts affirmed rights that
protect hate speech.

Rationale: Narrow perspective

Is it possible to construct constitutional codes? Could codes be
written which withstand the test of overbreadth and which protect
content-based expression? This author believes that these questions
may be answered in the affirmative. It should be noted that Justice
Scalia, as well as judges Cohn and Warren, acknowledged that certain
forms of expression may be regulated. In UWM Post, Judge Warren
admitted that the First Amendment "does not protect all speech." He
noted that certain narrowly limited categories "are considered to be
of such slight social value that any benefit that may be derived from
them is clearly outweighed by their costs to order and morality"
(1169). He specifically cited fighting words, libel, and obscenity,
but did not evaluate the status of hate speech. In R.A.V., Justice
Scalia claimed: " our society, like other free but civilized
societies, has permitted restrictions upon the content of speech in a
few limited areas . We have recognized that 'freedom of speech'
referred to by the First Amendment does not include a freedom to
disregard these traditional limitations" (2538, 2543). Scalia,
however, did not refer directly to hate speech. In John Doe, Judge
Cohn surmised: "It is an unfortunate fact of our constitutional
system that the ideals of freedom and equality are often in
conflict." He admitted that the "difficult and sometimes painful task
of our political and legal institutions is to mediate the appropriate
balance between these two competing values" (853). Yet, he did not
indicate where that balance should fall regarding hate speech. It
seems plausible that the decisions under study represent instances in
which justices simply tossed out unconstitutional codes which
inappropriately attempted to regulate hate speech. The decisions do
not close the door to the notion that hate speech may be regulated by
a constitutional code.

Any potentially acceptable regulation would narrowly define "hate
speech" as "unwanted, demeaning, and injurious hate epithets directed
at a specific individual." The code would apply only to this narrow
category of expression. The definition would limit the code's reach
while satisfying constitutional demands. Several writers justify
regulation of hate speech on the grounds that it lacks social value,
causes harm, and falls outside the scope of the First Amendment.
According to Henry Saad, "this speech does not advance ideas"
(1991,1352). R. George Wright argues that "such speech, inherently or
in its context, does not amount to an attempt to communicate any
particular social idea and therefore fails to fall within the class
of speech in the constitutional sense" (1988, 2). Deborah Schwartz
and Brian Owsley elaborate on this point, distinguishing between
racial ideas and racist epithets:

A racial idea invites debate and advances the search for
truth. Racist epithets, however, are more properly classified as
isolated insults. In so far as a racial idea advances this
underlying first amendment rationale, the idea merits protection.
However, protection of racist epithets undermines the purposes of
the truth-seeking goal underlying the first amendment (Schwartz,
1989-1990, 743).

A speaker's use of such words as "fucking niggers," "stupid Japs,"
or "goddam Spics" illustrates a desire to harm the listener . It
is obvious that the speaker is not making a controversial scientific
claim such as the one that different physiological features based on
race account for differences in intelligence and mental ability.
Rather, the speaker has hurled forth a group insult which is designed
merely to attack the victim's self-image (Owsley, 1992-1993,
331).

Cass Sunstein recommends that hate speech be restricted "if the
speech in question is not reasonably taken to be part of the exchange
of ideas" (1993, 797). Any regulation, however, must be narrowly
directed at hate-based epithets to provide the courts with legal
justification for upholding this limitation on expression.

Conclusion

Throughout history, the U.S. Supreme Court has restricted forms of
speech which contain content of low social value. For example, the
court set forth standards for regulating obscenity in Roth v.
United States (1957), commercial speech in Valentine v.
Chrestensen (1942), libel in New York Times v. Sullivan (1964), child
pornography in New York v. Ferber (1982), group discrimination
in Beauharnais v. Illinois (1952), criminal advocacy in
Brandenburg v. Ohio (1969), and fighting words in
Chaplinsky v. New Hampshire (1942). While these cases appear
to restrict message content, a practice that would violate
constitutional standards, a closer look indicates that the
restriction focuses on manner, not content. What the court regulated
is not the subject matter, but rather the treatment of that subject
matter. A subject that is treated in a commercial, obscene,
defamatory, pornographic, discriminatory, criminally advocative, or
provocative manner is subject to regulation. The content itself may
not be regulated. An individual could express any idea, theory, or
philosophy, as long as it was not communicated in a proscribed
"manner." The same rationale may be applied to hate epithets.

Libertarian scholars oppose regulation, maintaining that the best
remedy is not to restrict speech, but rather to encourage more
speech. Hutzler suggests that "lengthy discussion is the most
effective means" of dealing with hate speech issues (230). Ortner
agrees: "The best and perhaps the only recourse against racist and
hate speech is to speak out against it" (1993, 918). I agree that
"more speech" is the preferred solution. Campuses and communities
should encourage an atmosphere of free and open discussion between
majority and minority cultures. Yet, more communication may not solve
the problem of hate epithets; it may, in fact, exacerbate the
situation. More speech may lead to more hate speech. Some
individuals, without any fear of sanction, may choose to repeatedly
utter hate epithets in an attempt to demean and denigrate a hapless
victim, who must remain subjected to such abuse. The remedy of more
speech is useless when it provokes further abuse because the insulter
is in a position of authority over the victim. In such instances,
regulations which compel responsible expression may be both useful
and desirable. Campus administrators, state legislators, and perhaps
the courts, should revisit the hate speech issue at least one more
time, from a much more narrow perspective, before the controversy is
laid to rest.